11. The principal Act is amended by inserting, immediately after section 8, the following sections:8A.—(1) An employee who has a re-employment dispute with his employer which relates to any matter referred to in subsection (4)(a) or (b) must, before making any representation to the Minister under section 8B, first notify the Commissioner in writing of the re-employment dispute no later than one month after the last day of his employment with his employer.(2) An employee (being an employee who attains the specified age on or after 1st January 2012) who considers that he has been dismissed without just cause or excuse by his employer on or after the date the employee attains the specified age must, before making any representation to the Minister under section 8B, first notify the Commissioner in writing of the dismissal no later than one month after the last day of his employment with his employer. |
(3) An employee who has a re-employment dispute with his employer which relates to any matter referred to in subsection (4)(c) or (d) must, before lodging a claim with the Commissioner under section 8C, first notify the Commissioner in writing of the re-employment dispute no later than 6 months after the last day of his employment with his employer. |
(4) For the purposes of this Part, a re-employment dispute means a dispute over any of the following matters:(a) | the denial of re-employment to an employee on the ground that the employee does not satisfy the eligibility criteria set out in section 7(1); | (b) | the denial of re-employment, in accordance with section 7C(1), to an employee on the ground that the employer is unable to find a vacancy in his establishment which is suitable for the employee; | (c) | the reasonableness of the terms and conditions of any re-employment offer made pursuant to section 7A(1) or (3)(a)(i) by an employer; | (d) | the reasonableness of the amount of any employment assistance payment offered to an employee pursuant to section 7C(1)(b). |
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(5) Upon receipt of the notice referred to in subsection (1), (2) or (3), the Commissioner may consult, or direct a conciliation officer to consult, the employer and employee concerned in an endeavour to assist them to reach an agreement through conciliation. |
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Remedies relating to unreasonable denial of re-employment and dismissal without just cause or excuse |
8B.—(1) An employee who has a re-employment dispute with his employer which relates to any matter referred to in section 8A(4)(a) or (b), or an employee (being an employee who attains the specified age on or after 1st January 2012) who considers that he has been dismissed without just cause or excuse by his employer on or after the date the employee attains the specified age, may at any time after any conciliation conducted pursuant to section 8A(5), make representations in writing to the Minister to be re-employed.(2) Any representations to the Minister under subsection (1) shall be made no later than one month after the conclusion of any conciliation conducted pursuant to section 8A(5). |
(3) Where an employee who is dismissed by his employer makes any representations to the Minister in accordance with subsection (1) to be re-employed, such representations made shall operate as a bar to —(a) | the lodging of any claim under section 8C(1) in relation to the matter referred to in section 8A(4)(d), by that employee in respect of that dismissal; and | (b) | the making of any representations to the Minister in respect of that dismissal under section 14(2) of the Employment Act (Cap. 91) or section 35(3) of the Industrial Relations Act (Cap. 136). |
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(4) Where an employee who is dismissed by his employer makes any representations to the Minister in respect of that dismissal under section 14(2) of the Employment Act or section 35(3) of the Industrial Relations Act, such representations made shall operate as a bar to —(a) | the making of any representations to the Minister in respect of that dismissal under subsection (1); and | (b) | the lodging of any claim under section 8C(1) in relation to the matter referred to in section 8A(4)(d), by that employee in respect of that dismissal. |
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(5) The Minister may, before making a decision on any such representations made under subsection (1), direct the Commissioner to inquire and report whether in the Commissioner’s opinion the employee has been unreasonably denied of re-employment by his employer, or has been dismissed without just cause or excuse by his employer, as the case may be. |
(6) If, after considering any report made by the Commissioner under subsection (5), the Minister is satisfied that the employee has been unreasonably denied of re-employment by his employer, or dismissed by his employer without just cause or excuse, as the case may be, the Minister may, notwithstanding any rule of law or agreement to the contrary —(a) | direct the employer to re-employ the employee; or | (b) | direct the employer to pay such amount of compensation as the Minister may consider just and equitable having regard to all the circumstances of the case, |
and the employer shall comply with the direction of the Minister. |
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(7) Notwithstanding any other provision in this section, if the Minister —(a) | after considering any report made by the Commissioner under subsection (5); and | (b) | is satisfied that in relation to a dispute, being a re-employment dispute over the matter referred to in section 8A(4)(b), the employer had made reasonable attempts to find a vacancy in his establishment which is suitable for his employee, |
the Minister may allow the employee to lodge a claim for employment assistance payment with the Commissioner within such time as the Minister may determine. |
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(8) Sections 8C(4), 8D, 8E and 8F shall apply in relation to any claim lodged by an employee pursuant to subsection (7). |
(9) In determining the amount of compensation to be awarded under subsection (6), the Minister may, in particular, have regard to —(a) | the tripartite guidelines; and | (b) | the steps taken by the employer to re-employ his employee. |
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(10) The decision of the Minister on any representation made under this section shall be final. |
(11) Any direction of the Minister under subsection (6) shall operate as a bar to any action for damages by the employee in any court in respect of the unreasonable denial of re-employment, or the dismissal of the employee without just cause or excuse, as the case may be. |
(12) Any employer who fails to comply with the direction of the Minister under subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both. |
(13) Where any amount of compensation to be paid by an employer under subsection (6) is not paid in accordance with the direction of the Minister and the employer has been convicted of an offence under subsection (12), the amount or part thereof that remains unpaid shall be recoverable by the court as if it were a fine and the amount so recovered shall be paid to the employee entitled to payment under the direction of the Minister. |
(14) The Minister may, by writing under his hand, delegate all or any of his powers under this section (except the power of delegation conferred by this section) to any public officer. |
(15) A delegation under subsection (14) is revocable at will and no delegation shall prevent the exercise of any power under this section by the Minister. |
(16) A power so delegated, when exercised by the delegate, shall for the purposes of this section be deemed to have been exercised by the Minister. |
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Remedies relating to unreasonable terms and conditions of re-employment contract and employment assistance payment |
8C.—(1) An employee who has a re-employment dispute with his employer relating to any matter referred to in section 8A(4)(c) or (d), may at any time after any conciliation conducted pursuant to section 8A(5), lodge a claim with the Commissioner for the purpose of making a claim for the payment or the amount of the employment assistance payment, as the case may be.(2) Any claim lodged with the Commissioner under subsection (1) shall be made no later than one month after the conclusion of any conciliation conducted pursuant to section 8A(5). |
(3) Where an employee who is dismissed by his employer lodges any claim with the Commissioner in accordance with subsection (1) in relation to the matter referred to in section 8A(4)(d), such claim shall operate as a bar to —(a) | the making of any representations under section 8B(1) by that employee in respect of that dismissal; and | (b) | the making of any representations to the Minister in respect of that dismissal under section 14(2) of the Employment Act (Cap. 91) or section 35(3) of the Industrial Relations Act (Cap. 136). |
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(4) In making a decision on any claim in relation to the employment assistance payment, the Commissioner —(a) | may take into account the tripartite guidelines and any steps taken by the employer to re-employ his employee; and | (b) | may, notwithstanding paragraph (a), make an order in the prescribed form for any amount of employment assistance payment to be paid by an employer to an employee as the Commissioner considers just and equitable having regard to all the circumstances of the case. |
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Procedure for making and hearing claims |
8D.—(1) The procedure for the making and hearing of claims in relation to the employment assistance payment shall be as follows:(a) | an employee claiming shall lodge a claim in the prescribed form at the office of the Commissioner, specifying briefly the subject-matter of the claim and the remedy sought to be obtained, or he may make his claim in person to the Commissioner who shall immediately reduce it or cause it to be reduced in writing; | (b) | upon receipt of the claim and of the registration fee payable by the employee in accordance with the prescribed rate of fees, the Commissioner shall summon in writing the employer against whom the claim is made, giving reasonable notice to him of the nature of the claim and the time and place at which the claim will be inquired into, and the Commissioner shall also notify or summon all persons whose interests may appear to him likely to be affected by the proceedings; | (c) | if any person interested has been duly summoned by the Commissioner to attend an inquiry, and makes default in so doing, the Commissioner may subsequently summon in writing that person, giving reasonable notice to him of the nature of the claim and the subsequent time and place at which the claim will be inquired into, and the summons may be delivered by ordinary post to his last known address, and shall be deemed to be duly served on that person; | (d) | the Commissioner may also summon such witnesses as either party may wish to call; | (e) | at any time between the issuing of summons and the hearing of the claim, the Commissioner may hold or cause to be held a preliminary inquiry at which the employee claiming and the employer against whom the claim is made shall be present after having been notified in writing of the inquiry; | (f) | at the preliminary inquiry the employee may amend or withdraw the whole claim or portion thereof, or reach a settlement in respect of the claim; | (g) | if a settlement is effected at a preliminary inquiry in respect of a claim or portion thereof, the Commissioner shall make an order recording the terms of the settlement and that order shall have effect as if it were an order made under paragraph (h); | (h) | at the time and place appointed, the parties shall attend and state their case before the Commissioner and may call evidence, and the Commissioner, having heard on oath or affirmation the statements and evidence and any other evidence which he may consider necessary, shall give his decision and make such order in the prescribed form as may be necessary for giving effect to the decision; | (i) | if any person interested has been duly summoned by the Commissioner to attend at the inquiry and makes default in so doing, the Commissioner may hear the claim and make his decision in the absence of that person notwithstanding that the interest of that person may be prejudicially affected by his decision; and | (j) | the Commissioner shall keep a case book, in which he shall enter notes of the evidence taken and the decisions arrived at in each case heard before him and shall authenticate them by attaching his signature thereto, and the record in the case book shall be sufficient evidence of the giving of any decision, or of the making of any order, and of the terms thereof; and any person interested in a dispute, a decision or an order, shall be entitled to a copy of the record upon payment of the prescribed fee. |
(2) Where an employer admits to the Commissioner in writing that an amount of the employment assistance payment is owing by him to an employee, he need not be summoned before the Commissioner and the Commissioner may make such order in his absence. |
(3) Any person so summoned shall be legally bound to attend at the time and place mentioned in the summons and to answer truthfully all questions relating to the dispute which the Commissioner may put to him. |
(4) In hearing claims or conducting proceedings under this section, the Commissioner —(a) | shall not be bound to act in a formal manner or in accordance with the Evidence Act (Cap. 97) but may inform himself on any matters in such manner as he thinks just; and | (b) | shall act according to equity, good conscience and the merits of the case without regard to technicalities. |
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(5) In proceedings before the Commissioner, a party —(a) | being an employee and a member of a trade union that has been given recognition under Part III of the Industrial Relations Act (Cap. 136) by the employer of the employee, may be represented by an officer of the trade union; and | (b) | being an employer may be represented by one of his employees, but shall not be represented by an advocate or solicitor or a paid agent. |
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(6) Any summons issued under subsection (1)(b) or (d) or section 9A(1), may be served on any person in the same manner as the service of a summons under section 116 of the Criminal Procedure Code 2010 (Act 15 of 2010). |
(7) Any summons sent by registered post to any person in accordance with subsection (6) shall be deemed to be duly served on the person at the time when the summons would in the ordinary course of post be delivered and, in proving service of the summons, it shall be sufficient to prove that the envelope containing the summons was properly addressed, stamped and posted by registered post. |
(8) No fees other than a registration fee in accordance with the prescribed rate of fees shall be charged by the Commissioner in respect of processes issued by him under this section and all orders made by the Commissioner shall, notwithstanding that they may in respect of the amount or value be in excess of the ordinary jurisdiction of the court, be enforced by a District Court in the same manner as a judgment of that Court and all necessary processes may be served by the Court on behalf of the Commissioner. |
(9) No sale of immovable property shall for the purposes of the enforcement be ordered except by the High Court. |
(10) Nothing in this section shall limit or affect the jurisdiction of any court. |
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8E.—(1) In proceedings under section 8D where it appears to the Commissioner that there are more than one employee having a common claim or similar claims against the same employer or person liable, it shall not be necessary for each of them to make a separate claim under that section, but the Commissioner may, if he thinks fit, permit one or more of them to lodge a claim and to attend and act on behalf of and generally to represent the others, and the Commissioner may proceed to adjudicate on the several or joint claim of each and every such employee.(2) Where the Commissioner is of the opinion that the interest of the employer is or is likely to be prejudiced by the non-attendance of any employee, the Commissioner shall require the personal attendance of the employee. |
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Appeal against decision or order of Commissioner |
8F.—(1) Where any person interested is dissatisfied with the decision or order of the Commissioner, he may, within 14 days after the decision or order, appeal to the High Court.(2) The procedure governing any such appeal to the High Court shall be provided for in the Rules of Court. |
(3) No appeal shall lie against any decision or order of the Commissioner unless a substantial question of law is involved in the appeal. |
(4) In determining any appeal under subsection (1), the High Court may have regard to the tripartite guidelines.”. |
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